Police “Knock and Talk” Tactics Hit Home

By Fred A. Simpson
Police investigation procedures allow officers to knock on doors of criminal
suspects, be they the doors of hotels, motels, offices, or residences. The procedure is
ostensibly one of information seeking. However, if in that process the officers see
contraband in plain view that might incriminate their suspect, there is no
constitutional protection, and evidence is not suppressed. Knock and talk requires
balancing the intrusion of protected interests under the Fourth Amendment with the
promotion of legitimate governmental interests, including those of police officer
safety. In United States v. Gould, ___ F.3d __ (5th Cir. 2004), the Fifth Circuit
struggled with the knock and talk issue, first with a panel review, and then an en banc
review which reached new conclusions about the proper law of warrantless searches,
particularly warrantless residential searches.

Deputy sheriffs received telephone warnings that a convicted felon with

propensities for violence planned to kill two local judges. The officers went to the
felon’s home, a 14 X 60 foot trailer, in order to talk to him, but with no intentions of
making an arrest. (A typical “knock and talk” activity.) Another individual answered
the door and told the deputies that their target was down the hall asleep in his
bedroom, and he invited deputies to take a look. As deputies approached the
bedroom, they saw the door was open but nobody was in the room. They looked
under the bed and in the closets where they found three rifles. (Convicted felons have
no lawful right to bear arms.) The officers then looked around outside and found the
felon hiding in the woods and arrested him. He executed a consent to search and the
rifles were seized.

The district court allowed suppression of the three rifles as evidence on

grounds that the person who answered the door had no authority to allow deputies to
search the bedroom, despite Government claims to the “protective sweep” doctrine
necessary to avoid any surprise attack by somebody who might be hiding. The
district court noted that a protective sweep must be incident to an arrest.

The Fifth Circuit panel affirmed the district court in United States v. Gould,
326 F.3d 651 (5th Cir. 2003), but suggested an en banc review was appropriate so that
the question of whether a protective sweep may be used where there is no arrest in
progress. The en banc review resulted in a mixed decision that there is no hard and
fast rule that protective sweeps are only allowable if they are conducted incident to an
arrest, despite the fact that many of the cases seem to say otherwise.

The Fifth Circuit noted other requirements for a valid in-home protective
sweep. First, the police may only enter the home legally for a legitimate law
enforcement purpose. Second, there must be a reasonable, articulable suspicion that
the area to be swept harbors an individual posing a danger to those on the scene. In
other words, the sweep must be necessary for self protection because of a reasonable
suspicion that an ambush may occur. Third, the search may be no more than a
cursory inspection of those spaces where a person may be found. Last, there are two
time limitations. The sweep may last no longer than necessary, and for only so long
as police are justified in remaining on the residential premises.

One of the several dissenting justices noted that the facts of the Government’s
case created a new moniker for the investigative technique: “knock, enter, maybe
talk, and search.”

3614306v1